In this packet, the CCG proposes to the Chancellor and recommends for adoption CG 03.05, an amendment to Rule 62, proposed by an ad hoc committee appointed and chaired by William L. Riley, Dean of Students. This amendment, authorized but not required by FERPA §951, allows disclosure to the public of the results of a disciplinary proceeding involving certain crimes of violence or nonforcible sex offenses. Though the concept of protecting public safety by warning of the presence of dangerous persons has appeal, the current proposal is not the answer. A brief examination of the policy reveals that it is unlikely to protect public safety and will have adverse, unintended effects. Accordingly, I recommend that no change be made to the Code based on FERPA §951.

1. The disclosure authorized by FERPA §951 "shall include only the name of the student, the violation committed, and any sanction imposed by the institution on that student." Thus, no address or other identifying information may be included, and the conduct involved will be described only by reference to the often vague, general language of Code Rule 11E ("physical abuse", "coercion"). It is difficult to see just how students could use this notice to protect themselves.
Although some form of notice might under some circumstances adequately inform students, it is apparent that the statutorily authorized notice is not capable of adequately warning the campus community of dangerous persons.

Although the statutory notice provides minimal information and therefore has little public safety value, its subsequent use by the news media is likely to discourage students from reporting misconduct, particularly sexual assault, through the student discipline system. It is well known that many victims come forward through the student discipline system only because that process affords victim confidentiality and lack of publicity. Yet, adoption of FERPA §951 virtually assures that in some cases the victim's identity and circumstances of the assault will be publicly reported. Student newspapers are strong supporters of FERPA §951 disclosures. Presumably, they are not lobbying for the right to publish an obscure one-line notice. Rather, more information will be sought, and the only source for an ambitious reporter is the perpetrator, who is free to provide any version of events he or she desires, including the name of the victim. The University would be barred by FERPA from providing any information to contradict the perpetrator's story. The task force cover letter downplays this possibility, but the fact remains that it exists only because of the proposed policy.

2. The FERPA amendment applies to disciplinary proceedings conducted against a student who is an alleged perpetrator of any "crime of violence" or "nonforcible sex offense", terms defined by federal law. An institution may report the "final results" of such a proceeding, if that proceeding finds that the student violated the "institution's rules or policies
with respect to such crime or offense". (Emphasis added.) Our Rule 11E reaches some of the same conduct prohibited under the federal criminal code, but uses different, and usually more general, language. Tying Code violations to violations of the federal criminal code effectively criminalizes the disciplinary proceeding with none of the evidentiary and due process safeguards applicable to a criminal trial.

Publicizing disciplinary records creates the illusion that student disciplinary proceedings have the same purposes and procedures as a criminal prosecution. In fact, courts do not require criminal law procedural protections in college disciplinary hearings. For example, in the college setting, there typically is no right to cross examine witnesses or be represented by counsel. The criminal law burden of proof ("beyond a reasonable doubt") does not apply and judicial rules of evidence are not observed. As noted by the Director of the Office of Student Conduct at the University of Pennsylvania, without a guarantee of students' privacy, "parties would have all the public intrusion involved in a criminal proceeding without the attendant protections".

Despite the task force's protestations to the contrary, reporting a violator's name under FERPA §951 is a punitive sanction, and will be viewed as such by the violator and the public. For example, any reporting of the violator's name would certainly be prefaced by the text of §951, which includes the words "perpetrator", "crime" (twice), "offense" (twice) and a cross reference to the definition of "crime of violence" in the federal criminal code. The clear impression that this language creates is that the student is being reported for violating federal criminal law. It is therefore at least arguable the FERPA §951 is unconstitutional as violating the rights of criminal defendants guaranteed by the Bill of Rights.

In addition, commentators have noted that reporting under §951 is likely to destroy whatever educational value the disciplinary proceeding might otherwise have. Lack of confidentiality and a quasi-criminal atmosphere discourage forthright communication between students and school officials. Faced with the potential public, permanent, stigma as a violent criminal, students who might otherwise admit wrongdoing and accept a reasonable school-imposed penalty, now have every incentive to deny everything and focus on procedures and strategies to avoid liability.

3. Even if FERPA §951 is not unconstitutional, its implementation raises a host of unresolved legal questions. Resolving these questions will, in my view, require additional Code amendments and changes in administrative procedure within the student discipline system. Because FERPA §951 has been law for five years, some of these questions could perhaps be answered by studying what other schools have done, their specific language, their experience, and the character of any litigation under the provision. Accordingly, I support CCG's recommendation for a "close review by campus legal counsel." I do not, however, support CCG's overall approval of the task force proposal. For reasons noted above, I believe that FERPA §951 disclosures are bad policy and would oppose them even if the legal concerns regarding implementation could be adequately addressed.